Lynda K. Curtis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency,

Equal Employment Opportunity CommissionJan 28, 2000
01974324 (E.E.O.C. Jan. 28, 2000)

01974324

01-28-2000

Lynda K. Curtis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency,


Lynda K. Curtis v. United States Postal Service

01974324

January 28, 2000

Lynda K. Curtis, )

Complainant, )

)

v. ) Appeal No. 01974324

) Agency No. 3-W-0147-89

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency, )

)

DECISION

INTRODUCTION

Complainant timely filed an appeal with the Equal Employment Opportunity

Commission (Commission) from a final agency decision concerning her

complaint of unlawful employment discrimination in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,

and the Age Discrimination in Employment Act of 1967, as amended, 29

U.S.C. � 67 et seq.<1> Accordingly, the appeal is accepted in accordance

with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against

complainant on the bases of race (Caucasian female married to a Black

male), sex (female), age (over 40), and reprisal (prior EEO activity),<2>

when she was terminated during her probationary period for unsatisfactory

performance.

BACKGROUND

Complainant was a probationary letter carrier with the Sarasota, Florida

Post Office. She was terminated on June 20, 1989, for failing to perform

her duties in a manner that showed satisfactory progress in achieving an

acceptable level of proficiency. Complainant filed a formal complaint

on August 11, 1989, claiming discrimination on the bases of sex, age

and reprisal.

Complained claimed that her supervisor (Supervisor) discriminated against

her by marking her Absent Without Leave when she was in line to punch a

time clock; harassing her by following her on her routes and writing notes

when she did something wrong; and that she was not given proper training.

The Supervisor stated that he terminated complainant because of her

mis-deliveries, numerous safety violations, tardiness, and continued use

of over-time on an auxiliary route. The record contains complainant's

30 and 60 day evaluations which indicate instances of tardiness, repeated

safety violations, a caustic attitude, and failure to pass the 30 day and

60 day case counts. The record also notes that a comparison employee,

a female, over age 40, who was not terminated during her probationary

period, passed her 30, 60 and 90 day case counts, and had no safety

violations. The record contains a training check list of training

received by complainant.

Complainant's second line supervisor (Manager) averred that, because

complainant's husband was an acting supervisor at that office, he reviewed

the complainant's performance and the Supervisor's recommendation to

terminate her. The Manager stated that the Supervisor documented several

areas of complainant's poor performance and inability to show improvement

on an ongoing basis.

The Supervisor averred that he was not aware of complainant's prior EEO

activity. The Supervisor was not employed by the agency at the time of

complainant's 1986 termination or first EEO complaint.

Complainant requested a hearing before an EEOC Administrative Judge (AJ).

Four pre-hearing conferences were held with four different AJs during

which time complainant raised race (Caucasian) as an additional basis of

discrimination claiming that the agency discriminated against her because

she was white and her husband was Black.<3> At the third session of

the fourth pre-hearing conference, the parties agreed in writing to

hold the case in abeyance while the agency issued a final decision (FAD)

finding that complainant could not raise the additional basis of race,

complainant's appeal of that FAD to the Commission, and the Commission's

decision on the issue.

The agency then notified complaint by letter dated February 26, 1993,

that the agreement fully resolved the complaint and the case was closed.

On March 16, 1993, complainant notified the agency that it breached

the agreement. The agency failed to respond and complainant appealed

to the Commission.

The Commission issued a decision on December 21, 1993, finding that the

agency breached the settlement agreement.<4> The Commission ordered

the agency to reinstate the complaint and continue its processing.

The agency issued a final decision on June 22, 1995 finding that

complainant failed to establish a prima facie case of discrimination

based on race, sex, or age because she did not show that she was treated

differently than similarly situated employees. The agency found that

complainant did not establish a prima facie case of discrimination

based on reprisal because the Supervisor was not aware of her prior

EEO activity. The agency found that the Supervisor stated legitimate,

non-discriminatory reasons for the termination; namely complainant's

unacceptable performance.

Complainant appealed on July 25, 1995, and the Commission, in Curtis

v. U.S. Postal Service, EEOC Request No. 01955687 (October 22, 1995),

remanded the complaint for a supplemental investigation.<5> On April 3,

1997, the agency re-issued the FAD of June 22, 1995. Complainant appealed

arguing that the FAD issued on April 3, 1997, was a duplicate of the

one dated June 22, 1995, and the agency was not in compliance with the

Commission's decision.

The agency argued that it complied with the Commission's decision to

reconstruct the file. It argued that the FAD issued on June 22, 1995,

resulted from a complete investigative report, and that the same report

was produced as a result of the Commission's order for supplemental

investigation. It argued that reconstruction of the original information

did not change any of the data contained in the documents included in

the file, therefore, an identical FAD would naturally result.

FINDINGS AND ANALYSIS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. Complainant has the initial burden

of establishing a prima facie case of discrimination. If complainant

meets this burden, the burden shifts to the agency to articulate

some legitimate, nondiscriminatory reason for its challenged action.

Complainant must then prove, by a preponderance of the evidence,

that the legitimate reason articulated by the agency was a pretext for

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In

an ADEA case, the ultimate burden remains on complainant to demonstrate,

by a preponderance of the evidence, that age was a determinative factor.

Loeb v. Textron, 600 F. 2d 1003 (1st Cir. 1979); Fodale v. Department of

Health and Human Services, EEOC Request No. 05960344 (October 16, 1998).

This established order of analysis, in which the first step normally

consists of determining the existence of a prima facie case, need not

be followed in all cases. Where the agency articulates a legitimate,

nondiscriminatory reason for the actions at issue, the factual inquiry can

proceed directly to the third step of the McDonnell Douglas analysis,

that is, the ultimate issue of whether complainant has shown by a

preponderance of the evidence that the agency's actions were motivated

by discrimination. Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors

v. Aikens, 460 U.S. 711, 713-714 (1983).

The Commission finds that the agency articulated legitimate,

nondiscriminatory reasons for its actions, i.e., complainant's poor

performance; her tardiness, absences during a probationary period,

numerous safety violations, missed deliveries and failure to pass

two inspections. The Supervisor's evaluation was reviewed by the

Postmaster who concurred with the decision, noting that complainant's

poor performance was well documented.

The burden returns to complainant to demonstrate that the agency's

reason was a pretext for discrimination, that is, that the agency was

more likely motivated by discriminatory reasons. Burdine, 450 U.S. at

253. Complainant provided no evidence in support of her claim that the

agency terminated her based on her race and association with a Black

male, sex or age. Nothing in the record indicates that complainant was

discriminated against because of her marriage to a Black male. In fact,

the Postmaster averred that he carefully reviewed the Supervisor's

recommendation to terminate complainant because her husband was a

respected employee and acting supervisor in that office. The record

reveals that another white, female, over age 40 who performed well

was retained for employment. Complainant fails to prove that she was

treated differently than similarly situated employees based on race,

racial association, sex, or age and has not proven that the agency's

articulated reasons were a pretext for discrimination.

In order to establish a prima facie case of discrimination for an

allegation of reprisal, complainant must show: 1) that she engaged in

protected activity; 2) that the alleged discriminating official was aware

of the protected activity; 3) that she was disadvantaged by an action of

the agency contemporaneously with or subsequent to such participation;

and 4) that there is a causal connection between the protected activity

and the adverse employment action. Hochstadt v. Worcester Foundation for

Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,

545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d

80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,

683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).

The Commission finds that complainant fails to establish a prima

facie case of discrimination based on reprisal. Complainant engaged in

protected activity when she filed an EEO complainant in 1986 and in 1989.

However, the Supervisor, who was responsible for terminating complainant

was not employed by the agency at the time, and averred that he was not

aware of her EEO activity.

Assuming arguendo that the Supervisor was aware of complainant's prior

EEO activity, the agency stated legitimate, non-discriminatory reasons

for the termination, and complainant failed to show that the documented

instances of poor performance and absences were incorrect or were a

pretext for discrimination based on reprisal.

CONCLUSION

Accordingly, the decision of the agency is proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). All requests and arguments must be

submitted to the Director, Office of Federal Operations, Equal Employment

Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the

absence of a legible postmark, the request to reconsider shall be deemed

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. �1614.604).

The request or opposition must also include proof of service on the

other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. �1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. If you file a civil action, YOU MUST NAME AS

THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD

OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND

OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION

January 28, 2000 _______________________

DATE Carlton Hadden,

Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

__________________________

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all Federal sector EEO complaints pending at any stage

in the administrative process. Consequently, the Commission will

apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),

where applicable, in deciding the present appeal. The regulations,

as amended, may also be found at the Commission's website at

WWW.EEOC.GOV.

2 Complainant filed two prior EEO complaints. The first was filed when

complainant was terminated from the agency on April 4, 1986. The second

concerned breach of a reinstatement agreement. Complainant was reinstated

as a Letter Carrier with a new probationary period based on a settlement

resolution dated January 11, 1989.

3 Complainant claimed in her April 4, 1986 complaint that a manager

told her the Sarasota Post Office was not ready for a mixed couple.

The manager was no longer employed at Sarasota at the time of the

instant complaint.

4 See Curtis v. U.S. Postal Service, EEOC Request No. 01933139 (December

2, 1993).

5 The agency was unable to locate the complaint file.. The Commission

specifically ordered that the file be reconstructed to include all

documents normally required in the administrative processing of an

EEO complaint. Subsequently, the agency located the complaint file.